Director of Public Prosecutions v Karklins [2018] TASCCA 6; R v Fairbrother; ex-parte Attorney-General [2005] QCA 105, applied.

Hiron v The Queen [2007] NSWCCA 336; DPP v Foster [2019] TASCCA 15, referred to.

Criminal Law - Appeal against sentence - Appeals by Crown against inadequacy of sentence - Residual discretion not to resentence - Circumstances for exercising discretion - The need to establish principle of general application - Interference with witness in prosecution of family violence matters - Sentence quashed.

CMB v Attorney-General (NSW) [2015] HCA 9, 256 CLR 346; Green v The Queen (2011) HCA 49, 244 CLR 462, applied.

Director Of Public Prosecutions v Chatters [2011] TASCCA 8; R v Hernando [2002] NSWCCA 489, 136 A Crim R 451; R v Primmer [2020] NSWCCA 50; Director of Public Prosecutions v JSP [2020] TASCCA 3; Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54, referred to.

Judgment Number: [2020] TASCCA 4

DIRECTOR OF PUBLIC PROSECUTIONS v MATHEW LUKE JOHNSON

1. Appeal allowed.
2. Sentence of two years' imprisonment with non-parole period of 12 months (cumulative to a term of two months' imprisonment with effect from 19 August 2018) set aside.
3. Respondent sentenced to three years' imprisonment (cumulative to a term of two months' imprisonment from 19 August 2018).
4. Respondent not to be eligible to apply for parole until he has served 18 months of that sentence of three years' imprisonment.

DIRECTOR OF PUBLIC PROSECUTIONS v MATHEW LUKE JOHNSON

1. The respondent was sentenced by Brett J to a global sentence of two years' imprisonment for two counts of assault, one count of stalking, one count of attempting to interfere with a witness, and summary offences involving 15 counts of breaching a family violence order and 23 counts of attempting to breach a family violence order. I agree with the conclusion reached by Geason J and Marshall AJ that the appeal should be allowed.
2. I agree with the reasons expressed by Geason J as to matters of legal principle and with his Honour's reasons that the sentence was manifestly inadequate and that the residual discretion should not be exercised to dismiss this appeal. There are a few brief remarks I wish to add which bear on the adequacy of the sentence, and also on my conclusion that this offender and his offending provides an appropriate case for intervention and for the severity of the sentence to be increased.
3. There was an imperative for a sentence that would be effective as a personal deterrent and to set an example to others. These were serious crimes of assault by a mature offender with prior convictions for assault, stalking and breaching protective orders regarding five female victims, four of whom he had been in a relationship with. His most recent prior offence of violence was a summary offence of common assault which involved the same complainant and had attracted a partially suspended sentence of imprisonment. Twelve days after he was released, while subject to a condition of that sentencing order that he not reoffend, and while subject to a family violence order with comprehensive conditions protecting the complainant, he committed the crimes of assault which are now the subject of appeal. The respondent's recent experience of prison and the orders he was subject to were ineffective in protecting the complainant.
4. His moral culpability with respect to the crimes of assault and indeed, all the offences, was high. Before he committed these crimes, he knew he had reacted with violence towards the complainant in the past and he knew that he was prone to jealousy and possessiveness. In short, he knew he represented a danger to the complainant. This is not the case of an offender whose response was unexpected, who reacted in an uncharacteristic fashion and who was taken unawares by such a reaction. He had time to reflect after the first assault and before the second. His assaults were brutal and caused the complainant physical pain and trauma; he purposely caused her to fear that she was about to die. His breaches of the family violence orders commenced nine days after his release from prison and involved numerous occasions of telephone contact. Subsequent to the assaults, his conduct of stalking was domineering, relentless and subsisted over days. The court orders protecting the complainant had no impact on his conduct. He then interfered with the prosecution in a way that was calculated to succeed by sending messages and letters while he was in prison. He was determined to control and manipulate the complainant to avoid prosecution. It matters not that one of the charges then outstanding was ultimately not proceeded with.
5. A heavy punitive response was required. A sentence of two years' imprisonment failed to reflect the totality of his culpability and criminal conduct. It might have been adequate for the two counts of assault and the related breaches of the family violence order, allowing for his plea of guilty and also that it was the first lengthy term of imprisonment he had received. However, there was other conduct that also required a deterrent sentence. The crimes of stalking and attempting to interfere with a witness, and the related offences of breaching and attempting to breach a family violence order could well have attracted an additional term of 18 months for this offender, taking into account his pleas of guilty.
6. Having regard to the submissions made with respect to re-sentencing, including the respondent's eligibility to apply for parole while this decision was pending and that, since he was sentenced, he has made reasonable efforts towards his rehabilitation, I am persuaded that the sentence proposed by Marshall AJ is appropriate.

DIRECTOR OF PUBLIC PROSECUTIONS v MATHEW LUKE JOHNSON

1. The respondent pleaded guilty to two counts of assault, contrary to s 184 of the Criminal Code, a count of stalking contrary to s 192 of the Code, and a count of attempting to interfere with a witness contrary to ss 110 and 299 of the Code. Pursuant to s 385A of the Code a number of summary matters were dealt with on the respondent's plea of guilty. These were fifteen counts of breaching a family violence order and 23 counts of attempting to breach a family violence order.
2. Brett J imposed a global penalty of two years' imprisonment. The Director of Public Prosecutions appeals against sentence, contending that for such grave conduct, it is manifestly inadequate, submitting that the sentence imposed was at the lower end of sentences available to the court.
3. This Court should not interfere unless it is satisfied that the sentence is inadequate to the point where the appropriate conclusion is that some undefined error has occurred: Hili v The Queen [2010] HCA 45, 242 CLR 520 at [75] per Heydon J.

1. The principles required to be applied are frequently stated: an appellate court sits to correct material error: Dinsdale v The Queen [2000] HCA 54, 202 CLR 321 per Kirby J at [57]-[60]. Such error may be specific or non-specific: House v The King (1936) 55 CLR 499 at 505. A non-specific error is one in which there has been a misapplication of principle "even though where and how is not apparent from the statement of reasons": Wong v The Queen [2001] HCA 64, 207 CLR 584 at [58]; Dinsdale v The Queen (above) at [6].
2. Since this is a Crown appeal, if such error is demonstrated, it is necessary for the appellant to persuade the Court that its residual discretion not to interfere should not be exercised: CMB v The Attorney-General (NSW) [2015] HCA 9, 256 CLR 346 per French CJ and Gageler J at [34] and Keiffel J (as she then was), Bell and Keane JJ at [66]. The purpose of Crown appeals is the prevailing consideration. That purpose is to lay down principles for the governance and guidance of courts in sentencing convicted persons: Griffiths v The Queen (1977) 137 CLR 293 at 310 per Barwick CJ. Reference to principles is to be understood as encompassing the avoidance of manifest inadequacy or inconsistency in sentencing standards: Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 300. It is a limiting purpose however. It does not extend to the general correction of errors made by sentencing judges: Green v The Queen [2011] HCA 49, 244 CLR 462 at [36]. "That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases": Green (above) per French CJ, Crennan and Kiefel JJ, at [1].

1. The respondent was 41 at the time of his offending. The complainant was 36. They met in November 2017 and commenced a relationship. In December of that year the respondent moved in with the complainant and her two daughters, who were aged 10 and 12. On 28 May 2018 he was arrested for breaches of a protective order made for the benefit of the complainant. He was remanded in custody, and sentenced on 24 July 2018, and a 12 month family violence order was imposed. It included full non-contact conditions. He was released from custody having served his sentence on 30 July 2018.
2. Nine days after his release he made contact with the complainant in breach of the family violence order. She told him she wanted nothing to do with him.
3. He responded by threatening to tell police that they had been in contact contrary to the family violence order. He told her he had done courses intended to help him change his behaviour. He promised things would be different.
4. On 11 August 2018 he called the complainant telling her a taxi was coming to collect her to take her to a hotel. The respondent had booked a room in the complainant's name and paid cash for it. The complainant agreed to meet the respondent and packed an overnight bag. She travelled by taxi to the hotel. They went to the room and talked. After a period of time they had consensual sexual intercourse.
5. At about 3pm the respondent left the hotel, purchasing beer, vodka and orange juice. He and the complainant consumed the alcohol. The complainant had about four vodka and orange juices over about three hours, and the respondent about eight beers over the same period.
6. Later in the evening they were sitting on the bed, and the respondent was going through the complainant's phone. While he was doing so the complainant received a message from a male person. She identified the male person to the respondent as "a friend". The respondent became aggressive, and yelled at the complainant that she was cheating. He called her "a lying, cheating slut" and a "dirty slut". He told her that he loved her. He said that he had trusted her. He grabbed the complainant and pulled her head down so that her left cheek was facing down on the bed and her right cheek was facing the ceiling. Holding her down, he struck her to the face with his hand four times. A clump of her hair was pulled from her scalp.
7. He then went to the bathroom, while the complainant remained on the bed. About five minutes later he returned. He called the complainant "a slut" and grabbed the back of her hair, pushing her face down into a pillow. He held her face down for a few minutes and sat on top of her, with his legs on either side. His weight was pushing down on her. She was unable to move her body and believed the respondent was trying to kill her. She struggled to breathe. She screamed as much as she could "my girls, my girls". Eventually the respondent let her go but having done so he grabbed her left arm and squeezed it tightly. He held her and said "you're not going anywhere, I have got you now". He told her that she would never see her girls again.
8. The complainant told the respondent she needed to use the bathroom and pulled away from him. She went to the bathroom, locked the door and got in the shower. She curled up on the floor of the shower and called out for help. She was scared. The respondent banged on the bathroom door.
9. She returned to the room about 10 minutes later, when things had become quiet. She asked the respondent to leave her alone and let her sleep. He replied that he would not do so until she told him the truth. She said she would talk to him tomorrow when they were both sober. Again she asked to be allowed to sleep, but again he insisted she tell him the truth. He had her phone. He telephoned the male from whom the message had been received, and said "you're a dead man walking" and told him not to message the complainant again, saying "she's mine". He did not return the phone to the complainant.
10. The complainant lay down on the bed. The respondent held onto her arm, and said he would not hurt her again if she told him that she loved him. This continued until he fell asleep. Shortly afterwards the complainant also fell asleep.
11. The following day the complainant retrieved her phone. She rang her sister and told her where she was. She did not identify the hotel, because there was a family violence order in place, and she was concerned that she would be in trouble with police for being with the respondent in breach of the order. Later she called her sister again and arranged to be collected. She reported the matter to police later that day.
12. On 12 August 2018 the respondent telephoned the complainant 32 times. Sixteen of the calls were answered. The first call was made at 9.26am and lasted for over two minutes. The last call was made at around midnight. He also sent four text messages, in which he told the complainant that he loved her and asked her to contact him.
13. The following day the respondent telephoned the complainant 84 times and sent 59 text messages. The first call was at 2.50pm and the last at 6.16pm. The final text message was sent at 11.31pm. He was abusive and demeaning towards her in some of the messages, threatening to give police naked photos of her, and in others he pleaded with her for a chance.
14. On 14 August 2018 the respondent telephoned the complainant 27 times and sent her 47 text messages. The first call was at 12.07pm and the last at 10.44pm. He sent the first text message at 1.07pm and the last at 10.44pm. Those messages were in a similar vein to earlier messages, ranging from threats to pleading. This contact continued on 15 and 16 August 2018.
15. On 19 August 2018 the respondent presented himself at the Hobart Police Station and participated in an interview. He had been aware of an investigation into the assaults since 13 August and had arranged to attend for interview. He told police that he was homeless; that he knew there was an order and he was not permitted to make contact with the complainant and that he understood that if he breached the order he could go to gaol. He admitted calling her names, claimed to have been using drugs, and agreed that he was a jealous person.
16. Between 25 August and 20 October, the respondent asked his father to contact the complainant. After repeated requests, his father agreed, passing on two letters authored by the respondent, writing one of his own and telephoning her, to have her withdraw the charges and refuse to give evidence. The complainant did not acquiesce.

1. There was little available by way of mitigation. A forensic mental health report pointed to alcohol abuse, mild anxiety and depression. The respondent had participated in some rehabilitative programs. He had a poor record of prior convictions. The plea of guilty conferred a utilitarian benefit entitling the respondent to a sentencing discount: Director of Public Prosecutions v Broad [2018] TASCCA 5, 29 Tas R 89 at [30]. The victim was spared the ordeal of giving evidence.
2. In sentencing Brett J said:

"Mr Johnson, you have pleaded guilty on the indictment to 2 counts of assault, 1 count of stalking and 1 count of attempting to interfere with a witness. You have also pleaded guilty to a number of summary offences, which I have agreed to hear and determine pursuant to s 385A of the Criminal Code. These are 15 counts of breaching a family violence order and 23 counts of attempting to breach such an order. Some of the conduct relevant to the summary offences is conduct which also constitutes one or more counts to which you have pleaded guilty on the indictment. In respect of such conduct, you will not be punished more than once. However, the sentence will take into account, where appropriate, that such conduct not only constituted the commission of the relevant crime, but was also committed in breach of the family violence order. I note also that the commission of all of the crimes and offences was in breach of the suspended sentence that we have discussed today, which is a sentence in respect of which there was a partial suspension, the period of suspension was two months' imprisonment. That sentence was imposed by a magistrate on 24 July 2018.

All of the offending conduct either constitutes or is related to family violence against a woman with whom you had been in a relationship. That relationship commenced in November 2017. Within a few months of its commencement, you assaulted her and stole her property. On 5 April 2018, you were sentenced to imprisonment for this conduct and a restraint order was made which prevented you from having contact with the complainant. Just over a month later, you breached this order by contacting the complainant by telephone on numerous occasions. This is the conduct to which the sentence imposed on 24 July 2018, part of which was suspended, relates. You had to serve part of that sentence and you were released from custody on 30 July 2018.

Nine days after your release, on 8 August 2018, you again commenced to contact the complainant by telephone. You persisted with this conduct by telephoning her numerous times every day between the 8 and 11 August. You did so despite the family violence order, and being told by the complainant to leave her alone and not contact her. However, during a conversation initiated by you on 11 August, the complainant agreed to meet you at a hotel. It is clear from what subsequently took place that she anticipated that she would spend the night with you at the hotel.

For a few hours after you both arrived at the hotel on that day, the relationship between you was stable. You both consumed alcohol, and on at least one occasion engaged in consensual sexual intercourse. However, at about 7pm, you were drunk and became angry and irrationally jealous when the complainant received a text message from a male friend. You assaulted the complainant by grabbing her hair, holding her head down on the bed and striking her to the face with your hand four times. Both before and while you were doing this, you verbally abused and threatened her. After a break of about five minutes while you went to the bathroom, you again assaulted the complainant. On this occasion, you pushed and held her face into a pillow while you sat on top of her with all your weight pushing down on her. You held her in this position for a few minutes, during which she struggled to breathe. Your conduct and what you were saying while you did this caused the complainant to believe, reasonably in my view, that you were trying to kill her, and her life was under threat. The statements included telling her that she would never see her children again.

For a relatively short period, until you both fell asleep, you continued to act in a threatening and possessive way towards the complainant, although you did not physically assault her again. The next morning you left the hotel room before her, and the complainant was later collected from the hotel by members of her family. She reported the matter to the police the same day.

The stalking conduct which constitutes count four on the indictment commenced the following day and continued thereafter for a period of seven days. During that time, you constantly attempted to contact the complainant by telephoning her, and sending her text messages on numerous occasions. I have been provided with a sample of the text messages. They demonstrate an apparently obsessive persistence in seeking to bend the complainant to your will. There is a mixture of repeated threats and emotional manipulation, all of which are clearly designed to persuade the complainant to continue a relationship with you. It would seem that on occasion the complainant did engage in conversation with you about the future. However, during this period, she also felt upset, scared and frightened and on at least one occasion, told you to leave her alone.

This conduct, of course, was in breach of the family violence order. Further, you knew that by at least 13 August, that the police were investigating the assaults which taken place at the hotel. None of this deterred you from your vigorous pursuit of the complainant.

To your credit, on 19 August, you voluntarily surrendered to and engaged in an interview with police. You have been in custody since then.

Count five on the indictment relates to your efforts while in prison on remand, to instigate your father to contact the complainant for the purpose of persuading her to refuse to give evidence against you. Over a two-month period commencing a few days after your remand in custody, you telephoned your father on numerous occasions for this purpose. Your father is elderly, and was living in residential care because he was unable to live independently. He suffers from epilepsy and a brain injury. He was reluctant to help you. On number of occasions, he told you that he did not want to get involved. However, you were also persistent in your efforts to persuade him to do what you wanted, and again relied on a combination of overbearing conduct and emotional manipulation. He attempted to contact the complainant, at your urging, on numerous occasions during the relevant period, although was only successful in actually making contact with her a couple of times. He also forwarded four letters to the complainant. Each had been authored by you. Once again, all of these attempts to indirectly contact the complainant were contrary to the family violence order. Some of the contact involved attempting to persuade the complainant to withdraw the charges. Of course, she was not in a position to do this because the prosecution of charges is a matter for the prosecuting authorities. It is clear, though, and I accept, that your ultimate aim was to persuade her to refuse to testify against you. Needless to say, although she did not ultimately have to testify against you, you were unsuccessful in achieving your aim.

The complainant's impact statement attests to ongoing impact of a nature which is to be expected from family violence of this type. She is traumatised by her experience, and has ongoing fear and anxiety. She did not suffer ongoing physical injury. The result of the assaults was bruising and a black eye, and I have seen the photographs in relation to that today. However, the experience of being smothered in circumstances where she reasonably believed that you were trying to kill her, must have been terrifying and can be expected to have resulted in ongoing trauma. Further, it was inevitable that the impact on her would affect her children and this is also attested to by her in her victim impact statement.

You are 41 years of age. You have a significant criminal history which until 10 years ago largely consisted of traffic offences, and some offences involving police which were committed many years ago. However, since 2009 there has been a concerning history of family violence. In 2009 and 2010, you were sentenced on two occasions to wholly and partially suspended terms of imprisonment for family violence offending which included several breaches of family violence orders. Some of this conduct was committed in breach of the terms of suspension of sentences of imprisonment. You were also convicted and sentenced for the crime of stalking. This was related to family violence offending but involved a relative of the family violence complainant. There is then a significant break in offending, which I acknowledge, until 2017, when you were again sentenced to imprisonment for numerous breaches of family violence orders. You were subsequently sentenced for assaulting the complainant and breaching the restraint order as I have already described. I note that the assault for which you were sentenced on that occasion was in breach of a suspended sentence imposed for other family violence offences.

I have been provided with a forensic mental health report. This report records your long-standing alcohol use disorder and some aspects of your personality, which the author believes result from impaired attachments in childhood, and which detract from your capacity to form sustained healthy relationships. However, in my view, there is no evidence of significant mental illness apart from ongoing depression and anxiety. Although depression and anxiety is the basis for the disability support pension which you receive, the author of the report describes these conditions, at least as at the date of his report, as 'mild'. I am not satisfied that there is any realistic direct relationship between them and your ongoing family violence offending in the sense that they have a causal relationship with respect to that offending. Of course, they do provide context in which the offending occurred and probably provide some explanation of your inability to control your conduct in the sense of complying with court orders, and the terms of suspended sentences. In my view, there is nothing in the findings which significantly mitigates your culpability, although I do note that it does provide some explanation and context for your conduct.

The overall course of conduct described above, and represented by the charges to which you have pleaded guilty, represents serious criminality. The assaults were brutal, and perpetrated against someone who had placed herself in a vulnerable situation, because she had, despite your past misconduct, decided to trust you. Your conduct was in clear breach of that trust. Further, your actions, particularly holding her face into a pillow for a prolonged period, caused her reasonably to believe that she was under lethal threat. The stalking conduct and your attempt to interfere with the complainant as a witness, was perpetrated on a continuous basis over a prolonged period and compounded the impact upon her. There is also the question of the significant pressure to which you subjected your elderly and infirmed father. I regard this as an aggravating feature in respect of count 5, although I note what your counsel has said today about your remorse in this regard, I accept that as you sit here today you do have that remorse, but I also note that the weight to be attributed to your claims of remorse is relatively limited given the prolonged period of time over which you subjected your father to that pressure.

It is clear that a sentence which emphasises personal deterrence is called for in this case. A matter of considerable concern is your brazen defiance and ongoing refusal to be bound by lawful orders, particularly family violence orders. In the circumstances of this case, the fact that the complainant was receptive to some of the contact, and agreed to spend the night with you in the hotel, notwithstanding the existence of the order, does not, in my view, mitigate your culpability to any significant extent. You had been previously sentenced to periods of imprisonment for breaching orders and well knew that they were binding on you, notwithstanding agreement from her. Other aspects of your conduct which suggest the need for an emphasis on personal deterrence include the fact that you commenced this course of conduct soon after being released from custody for similar offences, and while subject to a suspended sentence, that you continued with the stalking after you became aware that police were investigating the assaults, and your perpetration of the final crime over a prolonged period while in custody.

There is very little that has the capacity to mitigate the sentence. I think you should receive credit for the plea of guilty which should be taken as a plea entered at an early opportunity, given that it was indicated soon after the prosecution determined not to proceed with one serious crime on the indictment. I again say that your claim of genuine remorse and insight is acknowledged, and I accept that you have done the work that has been claimed by your counsel while you have been in prison, and that this does indicate a degree of insight, but these claims are to be balanced against the nature of the offending conduct, which occurred in the context of your prior offending, and seems to me to have involved repeated deliberate breaches of orders. It goes without saying that your intoxication at the time that you perpetrated the assaults cannot mitigate or excuse your culpability for that conduct, although again I accept that intoxication does explain your commission of these offences.

I will take into account the work that you have done in prison, I note that you have hopes for the future and I hope that this is sufficient to motivate you to seriously pursue a course of rehabilitation to address the deficits in your personality and character which seem to underlie your offending conduct, and to ensure that you comply with the orders that I impose on you. I will provide for rehabilitation by making provision for your early release on parole.

The orders I make are these. You are convicted of each of the crimes and offences to which you have pleaded guilty. The suspended sentence of two months' imprisonment imposed on you by a magistrate on 24 July 2018 is activated. It will be backdated to take effect as of 19 August 2018, and you will not be eligible for parole in respect of that two month sentence.

In respect of the crimes and offences to which you have pleaded guilty, you are sentenced to a global term of two years' imprisonment. That sentence will be served cumulatively upon the activated suspended sentence. I order that you not be eligible for parole until you have served one half of that sentence.

For the purpose of s 92A of the Sentencing Act I note that the total sentence imposed on you is a term of two years and two months' imprisonment, and the total period which you must serve, before becoming eligible for parole, is a period of 14 months. That 14 month period dates from 19 August 2018.

For the purpose of s 13A of the Family Violence Act 2004, I direct that, with the exception of count five on the indictment, which I do not regard as a family violence offence, each of the crimes and offences of which you have been convicted be recorded on your criminal record as a family violence offence. I note that I have already made an indefinite family violence order which is binding on you as from the time that I made it."

1. His Honour's sentencing remarks were comprehensive and correctly identify the relevant sentencing considerations. The mental health issues are dealt with, and the way in which they were to be considered, identified. Whilst no specific error is alleged by the appellant, none emerges.

1. Apart from the fact that the offending occurred in breach of court orders intended to protect a vulnerable female, the respondent's conduct involved acts of significant persistent violence including suffocation, followed by persistent attempts to have her drop the charges or refuse to give evidence; and stalking. In Director of Public Prosecutions v Karklins [2018] TASCCA 6, the insidious nature of such offending and the importance of general deterrence to protecting those vulnerable to it, were emphasised. Offending occurring in the privacy of the home, unseen, and away from help must be met with a penalty that serves as a warning to others that detection and conviction will result in severe consequences. In R v Fairbrother; ex parte Attorney General [2005] QCA 105 at 23, McMurdo P said at [23]:

"[23] Domestic violence is an insidious, prevalent and serious problem in our society. Victims are often too ashamed to publicly complain, partly because of misguided feelings of guilt and responsibility for the perpetrator's actions. Members of the community are often reluctant to become involved in the personal relationships of others where domestic violence is concerned. Perpetrators of domestic violence often fail to have insight into the seriousness of their offending, claiming an entitlement to behave in that way or at least to be forgiven by the victim and to evade punishment by society. Domestic violence has a deleterious on-going impact not only on the immediate victim but on the victim's wider family and ultimately on the whole of society. It is not solely a domestic issue; it is a crime against the State warranting salutary punishment. The cost to the community in terms of lost income and productivity, medical and psychological treatment and on-going social problems is immense. Perpetrators of serious acts of domestic violence must know that society will not tolerate such behaviour. They can expect the courts to impose significant sentences of imprisonment involving actual custody to deter not only individual offenders but also others who might otherwise think they can commit such acts with near impunity."

1. It might reasonably be observed that when the respondent went to the bathroom after the first attack he had an opportunity to pause, and to reflect upon his conduct. Instead he returned to the bedroom and continued his violence. That is an aggravating factor relevant to sentence: Hiron v The Queen [2007] NSWCCA 336.
2. The fact that the respondent's conduct included suffocation has significance to the assessment of the objective seriousness of the offending. Suffocation should be treated with the same level of seriousness as is afforded strangulation or throttling. Such conduct is inherently dangerous, and capable of causing serious consequences within a very short period. It renders victims incapable of acting to protect themselves. As Estcourt J observed in DPP v Foster [2019] TASCCA 15 at [26]- [27], it is a form of dominance and control which has the potential to cause grave psychological harm, serious injury and even death.
3. Aggravating too, as his Honour said, is the fact contact with the complainant began just nine days after the respondent's release for similar offending. The assaults occurred a mere twelve days after his release.
4. Compounding the seriousness of the assaults, the respondent attempted to interfere with the prosecution of the case. Karklins (above) also involved attempts to prevent the prosecution of serious assaults within a relationship. At [56] I expressed the view that "Relationship dynamics frequently militate against a prosecution. Conduct directed at interfering with the prosecutorial process undermines the system intended to afford protection to victims of violence ... This offending should be viewed as striking at the heart of legislative attempts to provide protection to the vulnerable. It should be accepted in cases of family violence that attempts to interfere with the due administration of justice by the means of emotional manipulation of a vulnerable victim is a serious matter the consequences of which will always be severe."
5. The stalking conduct is to be considered in the context of the earlier assaults and as part of a pattern of behaviour. It evidences the respondent's possessiveness. It was intended to engender fear in the complainant, and to make her comply with his wishes. As the learned sentencing judge noted, some of the messages demonstrated "an obsessive persistence in seeking to bend the complainant to your will".
6. These matters establish that the objective seriousness of the offending was very high encompassing serious assaults in circumstances where help was not available, followed by a series of attempts to avoid prosecution. Because that sort of interference has a probability of success, to the detriment of the safety of the victim and the frustration of community attempts to protect the vulnerable, gaol should be the inevitable consequence of such conduct.
7. The respondent's history of family violence offences indicated a poor attitude to the obligation to comply with family violence orders. Indeed he had been released from prison for similar offences, a little over a week before this occurred. Whilst he was not to be sentenced a second time for those offences, they were relevant to the Court's assessment of his character and deprived him of the opportunity to claim that this offending was an aberration: Veen v The Queen (No.2) [1988] HCA 14; (1988) 164 CLR 465 at [14]. It emphasised the need for a sentence which gave weight to personal deterrence.
8. Nor was the respondent a youthful offender in respect of whom it might be said rehabilitation was a primary sentencing consideration.
9. The principles articulated by Heydon J in Hili v The Queen (above) at [76]-[78] are to be borne in mind in determining an appeal such as this:

"76 When the second category is relied on, the usual complaint is that the sentence is 'manifestly excessive' or 'manifestly inadequate'. Mere excessiveness or inadequacy will not reveal that there is an error of either an identifiable or an unidentifiable nature. The difficulty which the principles in House v The King create for appellants in sentencing appeals - whether defendants complaining of 'manifest excessiveness' or the prosecution complaining of 'manifest inadequacy' - is that they give sentencing judges 'a wide measure of latitude which will be respected by appellate courts.' (Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 336) But it does not follow that, when a sentencing judge in one case looks back on the reasons for judgment of an earlier sentencing judge in a similar case, the later judge should give the earlier one 'a wide measure of latitude' in the sense of not departing from the outcome unless it is plainly wrong.

77 Sentences must be reasonably consistent. But it does not follow that disparities between them may not exist. Within the boundaries of reason, and leaving aside the special instance of co-offenders, where marked disparity renders sentences vulnerable on appeal (Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606), it cannot be said that any particular disparate sentence is necessarily wrong merely because it is disparate. Indeed, even within a single jurisdiction, one court, while bound by whatever this Court or the intermediate appellate court for that jurisdiction has held to be the correct legal principles (statutory or common law), may arrive at sentencing results in particular cases which are different from those reached by earlier courts in that jurisdiction without being open to appellate reversal or criticism for 'error' merely because of those differences.

78 Thus two courts may arrive at different sentences because the later court considers the first to have erred, not in relation to the identification of legal principle, but in relation to factual reasoning or in relation to the exercise of discretionary judgment. It is open to a later court (whether an intermediate appellate court or a trial court) to depart from the sentencing conclusion of an earlier intermediate appellate court or trial court even though the circumstances seem indistinguishable. It is open for the later court to do this simply because the later court thinks that the earlier court erred in fact: in that event the circumstances become distinguishable. It is also open for the later court to do this merely because it thinks the earlier court erred in the exercise of discretionary judgment - that is, arrived at a sentence which the later court, accepting the correctness of the legal principles stated, the facts found and the considerations taken or not taken into account by the earlier court, considers nonetheless to be too high or too low. The later court's liberty to differ from the sentencing conclusion reached by the earlier court does not exist only where it thinks the earlier court to be plainly wrong. It exists where the later court thinks the earlier court's conclusion to be merely wrong. Indeed it exists even where the later court does not think the earlier court's conclusion to be "wrong", but just disagrees with it. The liberty of the later court continues even if more than one earlier court has reached a conclusion with which the later court disagrees. Even after a court carrying out the difficult obligation of sentencing has identified the correct legal principles, found the facts correctly, taken into account all relevant considerations and excluded all irrelevant considerations, the court is left with a field in which to exercise a discretionary judgment. It is no doubt right for a sentencing court to examine what has happened in cases similar to the one under consideration. And it is no doubt reasonable for a sentencing court to behave with humility in reading the opinions of other judges in earlier cases who may be abler, better qualified, more learned, or more experienced. But in exercising its discretionary judgment, the primary duty of a sentencing court is to be true to its own perception of what degree of severity or leniency is appropriate.

79 If the position were otherwise, a later court would be compelled to impose sentences on offenders which it thought to be too harsh or too lenient merely because earlier courts had followed that path, even though the question whether a sentence should be heavy or light is not a question of law. This would be a novel application of the doctrine of precedent. For a sentence itself gives rise to no binding precedent. What may give rise to precedent is a statement of principles which affect how the sentencing discretion should be exercised (Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 605 [57])."

1. Approaching the matter with those principles in mind, and allowing for the fact that there was some duplication of conduct across the charges, and recognising the requirement to apply the totality principle, I have concluded that the sentence, assessed against the conduct, and considering the personal circumstances and antecedents of the respondent, falls short of that required to adequately respond to the gravity of the offending. The respondent's conduct was brutal, dangerous, prolonged, and cruel. It was manipulative, threatening and directed towards frustrating the due process of the prosecution. Having regard to the comprehensive statement of reasons for sentence, the result cannot be explained other than on the basis that there has been an unidentifiable error in the weighing of the matters identified in the reasons for sentence, and in the application of sentencing principles.
2. Having so determined, the Court must consider the residual discretion to decline to intervene. The matter of the residual discretion is not resolved by the conclusion, that the sentence is manifestly inadequate; it is engaged by reason of that conclusion: CMB (above) at [33].
3. It was explained in Director of Public Prosecutions v Chatters [2011] TASCCA 8, by a Court comprising Blow J (as he then was), Wood J and Porter J, that the residual discretion to dismiss a Crown appeal despite a sentence being manifestly inadequate survives in Tasmania (on bases other than double jeopardy). "In such a case it cannot be said that a more severe sentence 'is warranted in law' within the meaning of s 402(4)" of the Code. Pearce J summarised the law in Director of Public Prosecutions v Swan [2016] TASCCA 9.
4. The operation of the discretion was considered in R v Hernando [2002] NSWCCA 489, 136 A Crim R 451. Heydon J at [12] identified the two step nature of Crown appeals, identifying the two hurdles the Crown must surmount in order to succeed.
5. The first is the substantive question of inadequacy. The second, is to "... negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised." That statement was cited with approval in CMB v Attorney-General (NSW) (above) by French CJ and Gageler J at [34], and by Kiefel, Bell and Keane JJ at [66].
6. The rationale behind the discretion was explained by the High Court in Green v The Queen (2011) HCA 49, 244 CLR 462 at 479 [43]: "the guidance afforded sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual" [My emphasis]: Green (above) at [43] per French CJ, Crennan and Kiefel JJ.
7. In Green (above) at [43] the High Court identified the types of considerations upon which a court might exercise its residual discretion not to intervene: delay in the hearing and determination of the appeal, the imminent or past release of the respondent, and the effect of re-sentencing on the respondent's rehabilitation. Where such reasons exist, the onus is on the Crown to negate such reasons: CMB v Attorney General for the State of New South Wales (above); R v Hernando (above) at [12].
8. Necessarily the court hearing the appeal should be made aware of such matters. The residual discretion is not a mere postscript; it is the second hurdle, as Heydon J said in Hernando (above), and its operation and application should be addressed by counsel. Respondents to Crown appeals should inform the court about relevant matters such as the considerations identified in Green (above) at [43]. The Crown bears the burden of negating any such reason: CMB (above); Hernando (above). Courts are thereby enabled to consider the matter and expose their reasons for exercising the discretion (or not), rather than merely expressing a conclusion that the case is or is not one which should attract the exercise of the discretion.
9. R v Primmer [2020] NSWCCA 50 is a good example of a court receiving assistance on the matter. In that case, having conceded his sentence was lenient to the point of manifest inadequacy, the respondent placed information before the court relevant to the exercise of the residual discretion. The Court having determined that the relevant sentencing principles were "well-established, as are the principles applicable to an assessment of objective criminality", declined to interfere with the sentence, exercising the residual discretion not to intervene. Hamill J, with whom Leeming JA, and Harrison J agreed said:

[39] While error has been demonstrated, the case is not one where significant principles of law need to be clarified. The approach to be taken when sentencing co-offenders is well-established, as are the principles applicable to an assessment of objective criminality and the operation of the standard non-parole period.

[40] Further, the respondent provided an affidavit setting out his personal anxiety and distress when he heard about the appeal and the prospect that his sentence may be increased. This may be contrasted with the anxiety and distress inherent in any prosecution appeal which is not to be taken into account following the abolition of the principle of double jeopardy as it previously applied to prosecution appeals. As to this distinction, see, for example, R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49, R v Carroll, Carroll v R (2010) 77 NSWLR 45; [2010] NSWCCA 55 and Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.

[41] The respondent's affidavit was refreshing and persuasive because of its candour. He said that he was aware that the sentence was a lenient one, especially given the sentences imposed on the co-offenders. He also said that he was 'shattered' by the fact that the prosecution had appealed but that he 'kind of expected it'. He said that an increase in the sentence 'will kill me but I've got to cop it I suppose, if that happens'.

[42] Another significant factor is that the respondent is still only 22 years of age and is due for release in August this year. He said in his affidavit that his release date is just a week after his daughter's third birthday and that he also missed her first two birthdays because he was in custody. His affidavit sets out the plans he has made to get on with his life upon his release. Those plans include moving to a location where he will be away from bad influences and near family and friends who will support him. It is a location where he says 'there is no chance I will use drugs or abuse alcohol'. He will be motivated by his attempt to have contact with his daughter. He says the Department of Family and Community Services will only allow him access if he remains drug free. He says he will 'find a job and better [himself]' and that he has a few options in that regard. These post-release plans would be interfered with, or at least delayed, if there was any substantial increase in the sentence imposed on him."

1. The Court was told that the respondent has applied for parole on two occasions. The first application was refused because he had not completed a family violence offenders' course. The course is now not being offered but the respondent is completing tasks covering some of the content of the course, provided by support workers who are having weekly contact with him. The second application for parole has not been determined. The respondent has applied to complete a course directed at dealing with aggression, but it has not begun. He has completed a barista course and he hopes it will assist him to obtain employment. He describes his mental health as improved. The court was invited to consider these matters "in relation to any resentencing" but the respondent's eligibility for parole, his progress towards rehabilitation, and his efforts in that respect, are also relevant to the exercise of the discretion.
2. The Crown does not seek to be heard about those matters. Its submission is that the sentence is an affront to the administration of justice which risks undermining community attitudes, and that the discretion should not be exercised. The issue, as I interpret it, is that the sentence is so inadequate that it risks public confidence in the administration of justice. In some cases that result will be enough to require that the discretion not be exercised: Green (above) at [42].
3. The error which engages the discretion will not necessarily require the court to decline to exercise it. So much is clear from the decision of the majority in Court of Criminal Appeal in Director of Public Prosecutions v JSP [2020] TASCCA 3. In Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54, the New South Wales Court of Criminal Appeal, also makes that point. In that case the New South Wales Director of Public Prosecutions first submission with respect to the discretion was that it should not be exercised, because the sentencing process was "marked by clear error". Basten JA said as to this at [35]: "However, that by itself was only sufficient to engage the first limb of the Director's statutory task. The error itself did not demonstrate the need for this Court to intervene to establish any matter of general principle." [My emphasis]. The Director's second submission in Burton was that the sentencing judge's error led to a sentence which was "unreasonable or plainly unjust", because it was inadequate to demonstrate the need for strong denunciation of sexual abuse offences and the need for general deterrence. As to this submission Basten JA said at [37]: "One must be careful to avoid circularity in considering such matters: they tend to assume the result for which they contend". Although the sentencing court had proceeded on a legally erroneous basis, the court exercised its discretion not to intervene.
4. The question becomes, "is there a need to intervene to establish a matter of general principle?" In arriving at a conclusion, I have regard to changing community attitudes to violence in relationships, as a matter influencing the need for establishing principles reflecting those changes. In R v Kilic [2016] HCA 48, 91 ALJR 131 at [21] the High Court recognised those changes in community attitude, adding that sentencing practices for offences involving domestic violence may depart from past sentencing practices for this category of offence, as a result.
5. The need to reinforce and uphold the pivotal function the prosecution of family violence offences plays in the protection of the vulnerable is the element that assumes the greatest weight in my judgment. Prosecutions are the cornerstone of the system for the protection of victims. They serve to expose the offending, protect the victim and afford an opportunity for intervention directed towards the rehabilitation of the offender.
6. The respondent's interference in the prosecution of his offending was persistent and strikes at the heart of those principles. If there was any doubt the cases surveyed in Karklins (above) establish that the prosecution of family violence matters is notoriously difficult due to the vulnerability of victims to interference and pressure from perpetrators, with whom they will often have been in a relationship. I have concluded the circumstances of this case make it an appropriate vehicle through which to assert a general principle that conduct directed at interfering in the prosecution of family violence matters so significantly erodes the administration of justice that it should attract a heavy sentence of imprisonment. This is important to encourage community participation in reporting such violence, and to provide confidence in the processes which follow reporting. The importance of this principle prevails over the matters referred to by the respondent in respect of his rehabilitation and parole.
7. Accordingly I decline to exercise the residual discretion not to intervene. The Crown has demonstrated that the Court should quash the sentence and impose a different sentence.
8. The appeal should be allowed. I have regard to the matters put to the court on the respondent's behalf in relation to resentencing. I agree with the sentencing orders proposed by Marshall AJ.

DIRECTOR OF PUBLIC PROSECUTIONS v MATHEW LUKE JOHNSON

1. The appellant, the Director of Public Prosecutions, appeals against a sentence imposed on the respondent by Brett J on 23 July 2019.
2. The respondent pleaded guilty to two counts of assault contrary to s 184 of the Criminal Code, one count of stalking contrary to s 192 of the Code, and one count of attempting to interfere with a witness, contrary to ss 110 and 299 of the Code. The respondent also pleaded guilty to related summary charges. He pleaded guilty to 15 counts of breaching a family violence order and 23 counts of attempting to breach a family violence order. In respect of all the counts to which the respondent pleaded guilty, he was sentenced to a global term of 2 years' imprisonment.
3. The sole ground of appeal is that the sentence was manifestly inadequate.

1. The principles to be applied in appeals against sentence alleging manifest inadequacy are clear and well settled: see Armstrong v Tasmania [2017] TASCCA 18 at [6] per Estcourt J. It must be shown that the sentence imposed is "unreasonable or plainly unjust". Even if such an error is shown, the appellant must persuade the Court that its residual discretion not to interfere with the sentence should not be exercised.
2. In Crown appeals against sentence the primary purpose is to identify principles for the governance and guidance of sentencing courts to ensure public confidence in the administration of justice: see DPP v Swan [2016] TASCCA 9 at [24], per Pearce J.

1. The factual basis upon which the learned sentencing judge sentenced the respondent is not subject to dispute on the appeal.
2. The following points emerge from the learned sentencing judge's comments on passing sentence:
   • All of the offending conduct constitutes or is related to family violence against the complainant.
   • The relationship between the respondent and the complainant commenced in November 2017. Within a few months of the relationship commencing, the respondent assaulted the complainant and stole her property. On 5 April 2018, the respondent was imprisoned for that conduct and a restraint order was made preventing him from having contact with the complainant. The respondent breached that order by contacting the complainant on several occasions. The respondent was released from custody on 30 July 2018.
   • On 8 August 2018, nine days after his release from custody, the respondent started contacting the complainant in breach of a family violence order. He contacted her multiple times between 8 and 11 August 2018. The contact occurred despite the family violence order and despite being told by the complainant to leave her alone.
   • During a conversation initiated by the respondent on 11 August 2018, the complainant agreed to meet him at a hotel. Inside the hotel they consumed alcohol and had consensual sexual intercourse.
   • At about 7pm on 11 August 2018, the respondent saw a text message on the complainant's phone from a male friend. The respondent grabbed the complainant by her hair, held her head down on the bed and struck her to the face four times with his hand. Before and while doing this, he verbally abused and threatened the complainant. During this assault the complainant had a clump of hair pulled out of her head by the respondent. This later fact is not referred to in the comments on passing sentence but was part of the Crown facts.
   • After a five minute break, the respondent pushed the complainant and held her face into a pillow while he sat on top of her, pushing all his weight down on her. He held her in this position for a few minutes while she struggled to breathe. The complainant believed the respondent was trying to kill her. He told her that she would never see her children again.
   • The complainant and the respondent slept at the hotel. The next day she reported the matter to the police. The respondent then commenced to stalk the complainant for the next seven days by attempting to contact her by telephone and sending her numerous text messages. The text messages contained threats and showed emotional manipulation. The Court was informed by counsel that there were over 190 calls and 125 text messages from the respondent to the complainant over that period.
   • The respondent knew by 13 August 2018 that the police were investigating the assaults which occurred at the hotel, but he nevertheless continued to contact the complainant.
   • On 19 August 2018, the respondent voluntarily surrendered to police and participated in an interview.
   • While in prison on remand the respondent asked his father to contact the complainant to persuade her not to give evidence against him. The respondent's father is elderly and suffers from epilepsy and a brain injury. He was reluctant to help but the respondent was persistent. The respondent persuaded his father to contact the complainant. The father also forwarded letters from the respondent to the complainant. Some of the contact involved attempting to persuade the complainant to withdraw the charges, which she could not do as that was a matter for prosecuting authorities. The respondent also sought that the complainant not give evidence against him.
   • The complainant was traumatised by her experience and suffers from ongoing anxiety. The impact upon her of the crimes has affected her children.
   • The respondent is 41 years of age and over the last 10 years has a significant criminal history involving family violence.
   • The assaults were brutal and involved a breach of trust. The stalking conduct compounded the impact on the complainant. The respondent applied significant pressure to his elderly and infirm father.
   • The respondent showed a brazen defiance and ongoing refusal to be bound by lawful orders.
   • The respondent's guilty plea, at an early opportunity after the prosecution decided not to proceed with one other serious crime on the indictment, should result in the respondent receiving credit.
   • The respondent's intoxication explains the assaults but does not excuse them.
   • Work done by the respondent while in prison shows insight into his crimes.

1. The appellant submits that the crimes called for a penalty that would denounce the respondent's conduct and punish him proportionately to the circumstances of the offending. The appellant contends that specific deterrence is an important consideration. That is because the offending commenced nine days after release for similar offending, he had prior convictions for offences against this complainant and three other female complainants, and the offending continued after he knew police were investigating and after he was remanded in custody. The appellant also contends that a sentence aimed at general deterrence was required to recognise the unacceptability of family violence and to deter those who would attempt to persuade their victims not to give evidence against them.
2. Given that the only mitigating factor was the guilty plea, the appellant submits that the aggravating features of the offences warranted a sentence much higher than that imposed by the sentencing judge, such that the sentence imposed was manifestly inadequate in all the circumstances.

1. Counsel for the respondent submits the respondent's prior offending had not resulted in terms of imprisonment of more than three months. The respondent had not been subject to parole which was "untested territory" for him. Counsel also submits that the sentence fell within the higher range of sentences imposed for similar matters. Counsel further contends that the pressure on the complainant to withdraw the charges should be viewed in light of the original charges which included a charge of rape.

1. In previous cases sentences involving assault in domestic violence circumstances have led to sentences in the Supreme Court in the period March 2013 to March 2018 from community service to imprisonment for 3 years and 6 months. The later case involved 8 assaults over a period of 3¾ hours.
2. In Gregson v Tasmania [2018] TASCCA 14, the Court of Criminal Appeal upheld a sentence of 2 years' imprisonment with a non-parole period of 18 months for two counts of assault committed against a female partner. Gregson involved two episodes of multiple punches to the head in a domestic violence situation. Like the respondent in this matter, Mr Gregson had a prior history of violence against female partners.
3. In Gregson at [31], Martin AJ referred to the fact that statistical information about sentences in other like matters is helpful, but he said that "it does not establish a fixed range". The whole circumstances of the offending and the particular offence need to be given primacy: see Hili v The Queen [2010] HCA 45, 242 CLR 520 at [54] and [55].
4. Further, in Gregson at [30], Martin AJ said:

"Men like the appellant who are minded to use physical violence against their female partners must understand that the community is greatly disturbed by this type of unacceptable conduct. Such violence is prevalent and will be met with significant terms of imprisonment."

See also Director of Public Prosecutions v Karklins [2018] TASCCA 6 at [92], per Geason J.

1. The assaults in this matter were particularly serious. The second assault involved suffocation which caused the complainant to struggle to breathe. She reasonably believed that she was going to die. The offending occurred within days of the respondent being released from prison for family violence related conduct.
2. Attempting to interfere with a witness is also a very serious crime which has been met with sentences in the past of up to 2 years in duration: see Director of Public Prosecutions v Karklins (above) at [44]. In this matter the conduct of the respondent in assaulting the complainant is compounded by his attempts to have her not give evidence against him. This, together with the stalking charges, makes the respondent's conduct particularly serious. It does not matter that the respondent was attempting to get the complainant to withdraw a rape charge. His text messages referred to "charges" plural.
3. Given the above matters it is my view that the sentence imposed by the learned sentencing judge was not sufficiently proportionate to the circumstances of the offending. A message needs to be sent to violent men in the community that serious assaults on females and intimidatory and stalking behaviour, and behaviour designed to persuade a witness not to give evidence, will result in considerable periods of imprisonment.
4. I would allow the appeal and resentence the respondent to a period of imprisonment of 3 years with a non-parole period of 18 months. But for the respondent's guilty plea being given at the earliest reasonable opportunity, I would have imposed a sentence of 3 years and 9 months.